Recent consistory court judgments: exhumation

Both of the following judgments relate to petitions for the exhumation of remains: a straightforward application of Re Blagdon Cemetery in which a request to move remains to a nearby cemetery was refused; and a factually and procedurally more complex, but legally straightforward consideration of the treatment of the buried bodies and cremated remains of three members of a  Buddhist family which had been inappropriately buried in the consecrated part of a municipal cemetery.

Re Marjorie Kennedy deceased [2014] Manchester Cons Ct, Geoffrey Tattershall Ch.

The petition concerned the exhumation of the remains of the late wife of the petitioner, from Southern Cemetery, Manchester and their reinterment in Mill Lane Cemetery, Cheadle, about six miles away. Mill Lane Cemetery is closer to the residence of the petitioner, who at 88 years old was finding it increasingly difficult to visit her grave. The Chancellor reviewed the relevance of the pertinent facts – that the petitioner’s wife had been buried in the Southern Cemetery since 1992; that the undertakers stated that the coffin was likely to be in a suitable condition to permit exhumation and re-interment; and the proximity of the two locations – in the light of the associated case law.

The Chancellor’s discretion in such cases was explained by Steel Ch in Re Matheson (Decd) [1958] 1 WLR 246 at 248, and the presumption against exhumation in the Court of Arches judgment Re Blagdon Cemetery [2002] Fam 299; [2002] 3 WLR 603 where, with regard to medical reasons that might be taken into consideration, the court stated, [at 611],

“If advancing years and deteriorating health, and change of place of residence due to this, were to be accepted as a reason for permitting exhumation, then it would encourage application on this basis.  As George QC Ch pointed out in Re South London Crematorium (27 September 1999, unreported):

‘Most people change their residence several times in their lives. IF such petitions were regularly allowed, there would be a flood of similar application, and the likelihood of some remains (and ashes) being the subject of multiple moves’.

Such a practice would make unacceptable inroads into the principle of permanence of Christian burial and needs to be firmly resisted”.

This guidance was confirmed in In Re St Nicholas Sevenoaks [2005] 1 WLR 1011. The Chancellor declined to apply his discretion and permit the exhumation in view of: the not insignificant factor that the deceased had been buried in Manchester for 22 years; that sufficient medical grounds were not demonstrated, given the proximity of the two locations, estimated to be a fifteen minute journey by car; and that re-interment in a family grave was not being considered in the present case, a pertinent factor in In Re St James’ Churchyard, Hampton Hill (1982) 4 Consistory and Commissary Court Cases, case 25, and in Re Blagdon Cemetery.

Re Putney Vale Cemetery [2014] Southwark Cons Ct, Philip Petchey Ch.

The petition relates to the deceased relatives of the petitioner, Mr Kiet Kham Hong: His brother, Thuan Kiet Hong, died in an accident in 1991 and his cremated remains were not interred at that time; Thuc-Bich Tran, the petitioner’s grandmother, died in 1993 and her body was buried in the consecrated part of Putney Vale Cemetery; his father, Vinh Hong, died on 28 June 2014 and on 16 July 2014 his body was buried in a coffin, which also contained the ashes of Thuan Kiet Hong, in the plot where Thuc-Bich Tran had been interred.

Kiet Kham Hong’s parents were of Chinese and Vietnamese origin, and he and all of his family are Buddhists.  Although Vietnamese Buddhist monks had made the arrangements for the funeral of his father and the interment of his brother’s ashes, his family subsequently informed him that according to Chinese Buddhist tradition, these arrangements were inappropriate: they adversely affect the spirits of the deceased and, if not rectified, will bring misfortune (“bad karma”), as burial in consecrated ground was considered inappropriate.

The petitioner applied for three faculties to permit the exhumation of the remains of his brother, his grandmother, and his father, from the consecrated area of Putney Vale Cemetery, and for their re-interment in the unconsecrated part of the cemetery.  In more detail, what is required to rectify the situation according to Chinese Buddhist tradition is for: Vinh Hong’s remains to be exhumed, cremated and re-interred; Thuan Kiet Hong’s ashes to be exhumed and re-interred; and for the remains of Thuc-Bich Tran to be exhumed, placed in a new container and then re-interred in the same grave.  All of these re-interments are to be in the unconsecrated Garden of Remembrance in Putney Vale Cemetery.

The Chancellor was further informed by the petitioner in a supplementary letter that the Buddhist monks who are advising him will not know until after the exhumation of all the remains whether it is more propitious for Thuc-Bich Tran’s remains to be re-interred in her existing grave or in a new grave. He stated that his discretion to permit exhumation properly extended to circumstances of this nature, albeit where the mistake relied upon is “of an unusual sort”, and granting the petitions commented:

“[t]he faith of Church of England is very different to the Buddhist faith and its views about the appropriate treatment of the remains of those who have died evidently diverge but the views of Mr Khiet Kham Hong and his family are genuinely held and are appropriately treated with respect.”

The petitioner was aware of the requirement of a Ministry of Justice licence under section 25 Burial Law Act 1857 in relation to re-interment, and preliminary permission had been sought.

4 thoughts on “Recent consistory court judgments: exhumation

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